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North Carolina Amends Its Expert Discovery Rule

In July of 2015, the North Carolina legislature amended N.C. Rule of Civil Procedure 26(b)(4), which governs expert discovery. The new rule becomes effective October 1, 2015 and applies to actions commenced on or after that date.

Under the old rule, parties can obtain discovery related to trial experts by issuing expert interrogatories. Parties can also, upon motion, obtain additional discovery, such as deposition testimony and, with respect to such additional discovery, the court may require the party seeking discovery to pay a fair portion of the fees and expenses incurred by the opposing party in obtaining this additional discovery from its expert.

Under the new rule, the parties are required to disclose the identity of their expert trial witnesses and have the option, in connection with their disclosures, of providing a written report. The rule also allows parties, without filing a motion, to depose the opposing party’s trial experts. In addition, the new rule makes clear that the party requesting an expert deposition “shall pay the expert a reasonable fee for the time spent at that expert’s deposition.”

In addition to changing or clarifying the rule related to the discovery of expert opinions, the new rule discusses the issue of privileged communications. Under the new rule, communications between an attorney and its experts are not discoverable unless the communication: a) relates to the expert’s compensation; 2) identifies facts or data that the attorney provided to the expert and that the expert considered in forming his or her opinions; or 3) identifies assumptions that the party’s attorney provided and that the expert relied on in forming his or her opinions. Finally, under the new rule, an expert’s draft reports are exempted from discovery.

In light of the additional protections related to expert communications and drafts and the clarification related to paying an expert’s deposition fees that are set forth in the new rule, unless the statute of limitations period for a contemplated cause of action runs prior to October 1, 2015, subrogating insurers should consider delaying the filing of any actions until on or after October 1, 2015.